Following recommendations given in an independent report by Professor Ian Hargreaves in 2011, the UK Government had come up with several changes in the Copyright Law, covering aspects of fair dealing for accessible formats for the disabled, research and education, public administration, parody and personal copies for private use. Of these, regulations allowing personal copies of legally-bought music to be made for private use under exceptions to copyright are facing strong resistance from the UK music industry. Having come into force on October 1, 2014, the law was one of the two delayed statutory instruments on the matter passed on July 29, 2014.
The exact legal document can be seen here, and the Intellectual Property Office has released eight guides to explain the changes in simple terms. Of these guides, the one for consumers explains that these changes “allow you to make personal copies of media (ebooks, digital music or video files etc, [except computer programs]) you have bought, for private purposes such as format shifting or backup” on any of devices even the online cloud space that a consumer owns personally, though it remains “illegal to make copies for friends or family” and the electronic media used for distribution such as DVDs and e-books “can still be protected by technology which physically prevents copying and circumvention of such technology remains illegal”.
Thus, the Musicians’ Union, the British Academy of Songwriters, Composers and Authors (BASCA), and UK Music have jointly filed an application for the judicial review of this particular regulation. One of the claims made is that legislation cannot implement such an exception without providing for fair compensation to right-holders as mandated by the section 35 of the EU Copyright Directive. The compensation sought could be in the form of a state subsidy or a levy on sale of electronic devices such as MP3 players and iPods. Stating that the music industry supports the idea behind the change, Vick Bain, CEO of BASCA, added, “We have sought judicial review because of the way the government made its decision not to protect the UK’s creative industries – in stark contrast to other countries that have introduced copyright exceptions. We fully support the right of the consumer to copy legally bought music for their own personal and private use, but there must be fair compensation for the creators of the music”.
However the very EU Directive, that the music industry is relying on, states, “In certain situations where the prejudice to the rightholder would be minimal, no obligation for payment may arise”. And considering how the government in its report titled Modernising Copyright had responded to such a concern stating, “In view of the minimal impact on sales expected to arise from introduction of this permitted act, and the opportunity that it provides for the value of private copying to be priced in at the point of sale, the Government believes it will cause minimal, if any, harm to rights holders”, it seems unlikely that the government will relent easily. Mike Weatherley, former adviser on Intellectual Property to David Cameron, told Financial Times that, “the UK’s private copying exception is defined in a much narrower and more restrictive way than similar exceptions found elsewhere in Europe. In some European countries, the exception allows people to share their music with many family members and friends”. Even so, the Judiciary’s opinion on the matter remains to be seen.
This article is a contribution of Priyank Dwivedi, Intern, BananaIP Counsels